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Malaysia: Law Code Changes Threaten Rights

Amendments to Criminal Procedure Would Erode Judicial Authority

(Bangkok) – Malaysia’s Senate should reject the government’s proposed legal changes that would undermine the rights of criminal suspects, Human Rights Watch said today. Amendments to the country’s Code of Criminal Procedure passed the lower house of parliament on May 19, 2016, and will be debated by the Senate in the session starting on June 13.

The proposed amendments are being made at a time when the government of Prime Minister Najib Razak has intensified its crackdown on criticism by civil society activists, Human Rights Watch said. The code changes would limit the discretion of judges to impose more lenient sentences, allow for previously inadmissible testimony by unidentified witnesses and written testimony, and allow the denial of bail for a broader range of political and other offenses.

“The proposed amendments are part of a troubling trend of the Malaysian government undermining the right to a fair trial during periods of political turmoil,” said Phil Robertson, deputy Asia director at Human Rights Watch. “The Senate should reject amendments that undermine the rights of the accused or judges’ authority to protect rights.”

The proposed amendments raise serious questions about the government’s commitment to the right to a fair trial, Human Rights Watch said. The bill before the Senate contains provisions allowing for testimony by unidentified witnesses and written testimony in place of live testimony without the consent of the defendant. Both provisions deprive defendants of their right to cross-examine the witnesses against them, in violation of internationally recognized fair trial standards.

The proposed amendments are part of a troubling trend of the Malaysian government undermining the right to a fair trial during periods of political turmoil. The Senate should reject amendments that undermine the rights of the accused or judges’ authority to protect rights.

Phil Robertson

Deputy Director, Asia Division

The bill would also amend the Code of Criminal Procedure to make an array of additional offenses “non-bailable” – meaning that bail is no longer available as a matter of right. International law encourages the release with guarantees of criminal suspects awaiting trial. Penal Code sections 124B-124J, which criminalize “activity detrimental to parliamentary democracy,” are among the non-bailable offenses under the draft law. The proposal to deny bail as a right for such offenses appears aimed at quashing critical comment and peaceful activism, Human Rights Watch said, since the authorities have repeatedly used these provisions to arrest critics of the government and those calling for Najib’s resignation.

Under the proposed bill, judges would also be stripped of their discretion to impose conditional or unconditional discharges, or to release first offenders on probation rather than impose a criminal sentence, whenever the offender has been convicted of a “serious” crime – a term that is not defined in the statute. This would prevent the courts from taking into account the age, health, and mental condition of the defendant or any extenuating circumstances of the offense. Among those who will be affected by the withdrawal of judicial discretion to release first offenders are many of those facing charges or being investigated for political activism.

“The Najib government’s proposed legal revisions are sharpening new tools to punish peaceful activists at the expense of fair trials in Malaysia,” Robertson said. “Malaysia’s friends should raise concerns that the government is doing long-term damage to the rule of law in the country.”

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